The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1887-09-13
INTERMEDIARY COURT OF OAHU.
BEFORE M'cuLLY, J.

Intyre and A. Gomez.
The plaintiffs complain that the
defendant Gomez, the servant of
the defendant Mcintyre, being en-
trusted to drive the carriage of the
latter, negligently and unskilfully
drove against, and injured All You,
the plaintiff, wife of All Sung, CO.
plaintiff. 1t is admitted or proven
that the defendant Gomez, in pur-
suance of orders drove the defen-
dant McIntyre's son, down town,
and left him and was directed to
drive back to his masters house (;
that he did not take the direct
route thither but drove along Hotel
street to the west of Nuuanu street
on his way to see friend of his
living near st. Louis College. BY
his direct route he should not have
gone west of Nuuanu street. He
was driving rapidly and negligently
about the distance of a block out of
his route, when he ran against the
plaintiff All You. She was injured
severely, disabling her from work,
and requiring the aid of nurse.
The sole question in argument,
before the Court is, whether the
servant in making this detour, on
his own business during which the
accident occurred, was acting within
the scope of his employment. l find
cases directly applicable to the facts
in this case. In Joel VS.. Morrison
(1S34), 6 Car & Payne SOL, Parke
b, held, that if servant driving his
masters cart, on his masters bust
ness make a detour from the direct
road for some purpose of his own,
his master will be answerable in
damages for any occasioned by his
careless driving while so out of
his road. But if servant takes his
master s cart without leave at time
when he is not wanted for the pur-
pose of business and drive it about
solely for his own purposes, the
master will not be answerable. Fol-
lowing this case, in 1889, in 9th Car
& Payne COZ Sheath VS.. Wilson, be-
fore Erskine j., a servant drove
negligently against the plaintiff
while driving out of his way on an
errand of his own, in the course of
driving for his master, the master
was held responsible, because he has
put it in the servants power to mis-
manage the carriage by entrusting
him with 1t.
In the Decisions of the Supreme
Court of the United States, Vol. 20,
p. 294, Philadelphia and Reading
r. r. Co. VS.. Derby, 1852, the
Court says, the case of Sheath VS..
Wilson, above cited, states the law
in such cases distinctly, and cor
rectly. This court says, we find no
case which asserts the doctrine, that
a master Is not liable for the acts of
a servant in his employment when
the particular act causing the injury
was done in disregard of the general
orders or special command of the
master. Such qualification of the
maxim of respondent superior
would in measure nullify it. This
court also cites the language of Mr..
Justice Erskine thus: "Whenever the
master intrusted the servant with the
control of the carriage,it is no answer
that the servant acted improperly
in the management of it. If it were
it might be commended, that if a
master directs his servant to drive
slowly, and the servant drives fast,
and through his negligence occa-
sions an injury, the master will not
be liable. But that is not the law.
The master In such cases will
be liable, and the ground is, that he
has put it in the servants power to
mismanage the carriage, by intrust-
ing him with it. The same doctrine
with the same limitation is set forth
in Smiths, Master and Servant, sup
ported by the cases here cited, and
many others. The law Is uniform
and clear,-but when come to the
matter of judgment find a diff
Guilty not touched on by either
counsel, in the joinder of the mas
ter and servant, as defendants,
1t will be observed, that IN all the
cases cited, the master is the sole
defendant. Upon the authority of
Parsons VS.. Winchell 5 Cush, 592,
the action against the master and
servant jointly, cannot be maintain
ed. The tort is not joint one.
The master is not liable as if the
acts were done by himself, but be-
cause the law makes him answerable,
says the Court, per Metcalf j. If
the master may have suffered a
judgment and satisfied it, he
may call upon the servant for. reim-
bursement, but this he CANNOT do if
the servant have been made a CO..
defendant, as joint tort .tedsor.
The master cannot be deprieved of
this right, by the plaintiffs act of
joining the servant with him. Error
would lie upon Judgment against
them as joint defendants, since this
case comes into this Court, Gs it was
brought and adjudged)in the Police
Court, and must be so brought. l
here dismiss the complaint.
Nauoo,, e., ,,lo ;,+;ffe, ID